Joe Wheeler Electric Membership Corp.

National Labor Relations Board - Board Decisions

Jul 2, 1965

153 N.L.R.B. 1291 (N.L.R.B. 1965)

JOE WHEELER ELECTRIC MEMBERSHIP CORP. 1291
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Post in conspicuous places in Respondent's business offices, meeting halls, and
all places where notices to members are customarily posted, copies of the attached
notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional
Director for Region 20, shall, after being duly signed by Respondent's authorized
representative, be posted by Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered, defaced, or covered by any
other material.
(b) Sign and mail sufficient copies of said notice to the Regional Director for
Region 20 for posting by BESCO, if willing, in all places where notices to employees
are customarily posted.
(c) Notify the Regional Director for Region 20, in writing, within 20 days from
the date of receipt of this Decision and Recommended Order, what steps have been
taken to comply herewith.
4In the event that this Recommended Order be adopted by the l ard, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
51n the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read* "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT maintain a picket line at any entrance to Besco's building project
for the purpose of inducing or encouraging employees of BESCO or subcon-
tractors to refuse to work or for the purpose of causing BESCO to cease doing
business with Steiner Lumber Company or Las Plumas Development Company.
MILLMEN & CABINET MAKERS UNION, LOCAL No. 550, UNITED
BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 450 Golden
Gate Avenue, San Francisco, California, Telephone No 556-3197, if they have
any questions concerning this notice or compliance with its provisions.
Joe Wheeler Electric Membership Corporation and International
Brotherhood of Electrical Workers , Local Union No. 558. Case
No. 10-CA-5805. July `x,1965
DECISION AND ORDER
On March 22, 1965, Trial Examiner Phil W. Saunders issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices, and recommending
153 NLRB No. 99.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it cease and desist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Decision, a supporting brief, and a
motion to reopen the record.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions and briefs, and the entire record in the case, and hereby
adopts the Trial Examiner's findings, conclusions, and recommenda-
tions, with the following modifications.
We agree with the Trial Examiner's finding, which is borne out by
the evidence set forth in his Decision, that the Respondent did not
bargain in good faith with the Union. That the Respondent was deter-
mined not to reach and sign a collective-bargaining agreement with the
Union is graphically demonstrated by its intensive efforts to have the
employees abandon and disavow the Union which had been certified
as their bargaining representative.
Thus, although the Respondent's counsel on April 15, 1964, advised
the Union that the board of directors had rejected the Union's proposal
of March 31, 1964, for a 27-cent hourly increase, stating that the board
was "unwilling to grant any further increases" beyond those given to
certain employees in June 1963, Superintendent Kenneth Sharrot, in
May 1964, told employee Norman Terry, "I can get you a 21-cent all
hour raise if you forget the Union."
Again, although the Respondent's board of directors after consid-
erable delay rejected the Union's request made at the bargaining session
of July 14, 1964, for a 21-cent wage increase, the Respondent neverthe-
less on that very day gave Lamar Puckett and four other employees
"reclassification raises" ranging from 19 to 45 cents an hour. In addi-
tion, Line Foreman M. D. Shaneyfeldt in the latter part of July prom-
ised Puckett another raise if he would "drop the Union," and stated he
could "almost guarantee" Puckett a 21-cent raise in addition to that
which he had just received. Similarly, Shaneyfeldt told employee
Gene Parker, in early August 1964, that he believed that if employees
would "drop the Union" they would get a good raise, and that he was
"almost sure" they would get a 21-cent increase.
i On May 7, 1965, the Respondent filed a motion to reopen the record in order to pro-
vide it with an opportunity to introduce into evidence a petition allegedly signed on
February 1, 1965, by the Respondent 's employees that they did not wish to be represented'
by a union In view of our agreement with the Trial Examiner's findings concerning
the Respondent's unfair labor practices , we deny the motion as lacking in merit.
JOE WHEELER ELECTRIC MEMBERSHIP CORP. 1293
Finally, the Respondent's "predetermined and fixed resolution" not
to reach any final agreement with the Union is all too clearly shown by
the following statements which Chairman Alexander of the Respond-
ent's board of directors made to the Union's chief negotiator, James H.
Haygood, on August 5, 1964: "Well, since you boys have previously
been on strike and due to the action that was taken at that time, I don't
think that the Board of Directors has any desire to make any proposal
or reach any agreement .... We have no intention to [make] any fur-
ther proposals or trying to reach any agreement."
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that Respondent, Joe Wheeler Electric Membership
Corporation, Hartselle, Alabama, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order, as so modified :
1. Paragraph 2(b) is amended to read:
"(b) Offer, upon application, immediate and full reinstatement to
all those employees who went on strike in accordance with the provi-
sions set forth in "The Remedy," together with interest at the rate of
,6 percent per annum, in accordance with Isis Plumbing di Heating Co.,
138 NLRB 716."
2. Add the following as paragraph 2(c), the present paragraph
2(c) and those subsequent thereto being consecutively relettered :
"(c) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces."
3. The telephone number for Region 10, appearing at the bottom of
the Appendix attached to the Trial Examiner's Decision, is amended
to read : Telephone No. 526-5741.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on July 28, 1964 , and September 2, 1964, by International
Brotherhood of Electrical Workers, Local Union No. 558, herein called the Union,
the General Counsel issued ^a complaint dated September 4, 1964, against Joe Wheeler
Electric Membership Corporation , herein called the Respondent or the Company.
The complaint alleges that the Respondent engaged in unfair labor practices within
the meaning of Section 8 (a) (1) and 8 (a) (5) of the National Labor Relations Act,
as amended . In its answer the Company denied the unfair labor practice allegations.
A hearing was held before Trial Examiner Phil W . Saunders and all parties were
represented and were given full opportunity to examine and cross -examine witnesses,
to introduce evidence , and to argue orally. The parties filed briefs which have also
been duly considered.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, and from my observation and the demeanor of the wit-
nesses, ) I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Alabama corporation with its principal place of business at Hart-
selle, Alabama , where it is engaged as a public utility in the sale and distribution of
electricity . During the past year the Respondent purchased and received goods and
materials valued in excess of $25,000 directly from points located outside the State of
Alabama, and during the same period Respondent 's gross volume of business was in
excess of $250,000.
The complaint alleges, the answer admits, and I find that the Respondent is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local Union No. 558, is a labor
organization within the meaning of Section 2(5) of the Act, and I so find.
Ili. THE UNFAIR LABOR PRACTICES
In late 1962 the Union organized the employees of Respondent and in September
1962 the Acting Regional Director for Region 10 of the Board issued an order direct-
ing an election in an appropriate unit petitioned for by the Union. In October 1962
the Union won the election, and on November 2, 1962, the Regional Director certified
the Union as the exclusive bargaining representative of all employees in the unit found
appropriate .2 Thereafter the Union requested the Company to meet for the purpose
of negotiating a collective -bargaining agreement . The bargaining meetings between
the parties started on November 29, 1962, and continued through 1963 and most of
1964. The parties, however, have been unable to reach an agreement on a contract.
In April 1964 the Union struck the Company for a short interval and then returned
to work. In August 1964 the Union again struck, and this strike still continues.
8 (a) (1) Allegations , Testimony , and Conclusions
The complaint alleges that in May 1963 the Respondent 's supervisor, Kenneth
Sharrot, promised employees wage increases if they abandoned their activities for
the Union; that in July 1964 Sharrot misrepresented to employees that the Union
refused to agree to a wage increase which the Company was about to give to employ-
ees, and that Respondent 's supervisor , M. D. Shaneyfeldt , promised employees wage
increases if they would bypass the Union.
Norman Terry credibly testified that in May 1964 3 he had inquired of Supervisor
Sharrot when he was going to get a raise in pay, and that Sharrot replied by stating
that he "couldn't get a raise as long as [Terry] was in the Union " Sharrot then also
told Terry that he could tell all of the employees how they could get a pay raise, and
when Terry asked how, Sharrot replied, "Just forget the Union " Sharrot further
stated, "I can get you a 21 cent an hour raise if you forget the Union." Sharrot admit-
'The declaration that my findings are based on my observation of the witnesses is in-
tended to apply to the testimony of each and every witness, and my failure to comment
on the demeanor of a particular witness is not to be taken to mean that in evaluating
his testimony I have not taken his demeanor into consideration. Moreover, when given
logical reasons for rejecting the testimony of a particular witness, either in its entirety or
on a particular point, it should not be assumed that I rely exclusively on such reasons,
and that the demeanor of the witness has not been considered in evaluating his testimony
When I have indicated that I regard a particular witness as generally untrustworthy, it
is to be construed to mean that I reject his testimony as a whole , unless I explicitly in-
dicate that I accept his testimony on a particular point.
2 The status of the Respondent ' s line foreman remained in dispute On March 6, 1963,
the Board ' s Regional Director issued an order granting a motion to clarify the certifica-
tion, and the following unit was thereby found to be appropriate:
All employees at, and working out of, the Employer's establishments at Hartselle and
Moulton , Alabama, including the chief warehouseman , meter readers , and engineers, but
excluding office clerical employees , professional employees , guards, the area supervisor,
the superintendent , line foremen , and all other supervisors as defined in the Act.
2 All dates are 1964 unless specifically stated otherwise
JOE WHEELER ELECTRIC MEMBERSHIP CORP. 1295
ted in his own testimony that Terry was "mostly correct" in his statement of their
conversation on this occasion in question, but, stated that he had informed Terry that
employees could not be given raises as long as the Union was negotiating with the
Company. In crediting Terry's testimony it is also noted that Terry no longer works
for the Respondent, and his interest is measured accordingly. Supervisor Sharrot
was and is a most interested party, and as such he cannot claim to represent a neutral
position The General Counsel points out that another factor in establishing Terry's
credibility deals with the matter of the 21-cent-an-hour raise. In this regard Terry
stated with much more particularity than did Sharrot the exact amounts of the wage
increases which were discussed on this occasion, and the amount of 11 cents which a
new employee (Boger) was paid in excess of the existing rate for his classification.
Worthy of note also is the fact that Terry did not, at the time of the conversation with
Sharrot, know what the Union's latest wage demand was. But Sharrot certainly knew
of the 21-cent offer for he attended the March 31, 1964, bargaining meeting at which
the Union for the first time made a demand for increases which totaled that figure.
At the July 14 bargaining session the Company informed the Union of its intention
to raise five employees. The Union's chief negotiator, James Haygood, then informed
the Respondent that the Union wanted to discuss this matter with its members, and
that he would advise the Company in 2 days. The Union held a meeting on the night
of July 14, and by letter dated July 15 Haygood informed the Company that it was
agreeable to putting these raises into effect.4 Ronnie Dial credibly testified that Super-
visor Sharrot told him on the afternoon of July 14 that he had a raise and reclassifica-
tion from helper to an apprentice lineman, and Sharrot had also informed Dial that
the Union had turned it down, but that the Company "went ahead" and gave it to
him anyhow. Dial stated that at the union meeting that night the subject matter of
the raise was mentioned. John Murphy's testimony fully corroborated that given by
Dial. Lamar Puckett was also informed by Sharrot on July 14 that he was reclassi-
fied and had been given a raise.
Local counsel for the Respondent, Charles Shaver, testified that according to com-
pany policy the five employees involved here were entitled to reclassification and a
wage increase, and at the July 14 meeting the Union was so informed. Shaver further
stated that Union International Representative Arnold Madison then told the
Company that he objected to it because it was untimely, but that the Respondent's
chief negotiator, Prowell, informed the Union that the Company intended to put the
raises into effect anyway subject to any further negotiations. Shaver also related
that after the meeting ended the people representing management got together and
that they were then so informed to advise the five employees of their raises. Respond-
ent witnesses Prowell, Davis, and Sharrot gave similar testimony.
Lamar Puckett credibly testified that, during the latter part of July, Supervisor
Shaneyfeldt told him that he could get another raise if Puckett would "drop the
Union," and that Shaneyfeldt would "almost guarantee" Puckett a 21-cent raise on
top of what he had just received.5
Gene Parker credibly testified that a few days before the second strike in August,
as aforestated, Supervisor Shaneyfeldt told him that if employees would "drop the
Union" they would get a good raise, and that he was "almost sure" they could get 21
cents. Shaneyfeldt testified that he told Parker that if it had not been for the situa-
tion they were in employees could get 20 cents mote an hour It is noted that
Shaneyfeldt only varied the testimony of Parker, and on the basis of the demeanor
of the witnesses and for the other reasons stated herein, I have credited Parker's
testimony.°
Supervisors Sharrot's and Shaneyfeldt's statements to Terry, Puckett, and Parker
that they would get them raises if these employees and others would forsake the
Union, are promises of benefits which have been consistently held by the Board to
constitute unlawful interference. Likewise, such conduct is illegal whether perpetu-
ated before or after a union has been duly certified as the bargaining agent of the
employees. In this case such conduct reveals the Respondent's continuing efforts to
ultimately destroy the employees' certified bargaining representative. When super-
visors tell employees that they cannot receive a wage increase as long as they have the
Union, it is clearly beyond the scope of protected utterances. It further appears clear
' Joint Party Exhibit No. 53
5 While Shaneyfeldt denied in his testimony such a statement to Puckett , he did admit
that in the past the Company had granted raises of about 10 cents once a year
9 Monroe Livingston and Wallace Paterson also gave testimony for the General Counsel
which showed that even a member of the Respondent 's board of directors , John Wiley,
had also suggested and promised a pay raise if employees dropped the Union
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to me that the promises herein were not so isolated as not to support a finding as also
suggested by the Respondent. Here we had at least three employees promised raises
by two supervisors on several and different occasions, and certainly such instances
are too numerous to be considered isolated. In Hilton Hotels Corporation d/b/a
Statler Hilton Hotel, 138 NLRB 135, the Board held that a supervisor's statements to
two employees, on separate occasions, were not "isolated" and warranted the issuance
of a remedial order. In Kohler Co., 128 NLRB 1062, the Board held that super-
visors' unlawful statements to an employee on two different occasions were not so
isolated as not to support an 8(a)(1) finding Accordingly, I find that the Respond-
ent by the aforesaid conduct of Sharrot and Shaneyfeldt violated Section 8 (a) (1) of
the Act
As to the happenings on July 14, as aforestated, the Respondent contends that the
parties could not reach an agreement as to a general wage increase, and as a result
the Company told the Union that in keeping with past practice of reclassifying
employees who had satisfactorily completed 6 months in a certain step, a reclassifica-
tion of five employees would be made. In regards thereto, the Respondent's argu-
ment is the following:
The Union refused to agree to these reclassifications, and after definitely stating
to the Union its intention to reclassify the employees, the Respondent went ahead
and instituted its proposal which the Union had rejected; however, Respondent
stated that any increases employees received under these reclassifications were
subject to further bargaining. These employees were reclassified to the next
step in keeping with the Company policy concerning reclassification and were
given pay raises to adjust their wages to those being received by employees
already in that classification.
The Respondent's manager, J. E. Davis, testified that each year the Company would
look at its earnings, living costs, and other factors, and then determine whether or not
it could raise the employees. Davis further stated that the last two or three merit
increases had been given by the Company in May and November.? While Super-
visor Sharrot had some difficulty in stating the Respondent's past policy of reclassify-
ing employees, he nevertheless concluded that 6 months within a certain classification
was used as a basis for promotions. However, I agree with the General Counsel that
while certain aspects of this incident are specifically alleged as being violative of Sec-
tion 8 (a) (1), this conduct on July 14 bears most heavily on the 8(a) (5) allegation.
Refusal to Bargain-Testimony, Contentions, and Conclusions
Briefly summarized the Union submitted its initial proposal at the meeting on
November 29, 1962. On December 13, 1962, the Company submitted a counter-
proposal. At the January 9, 1963, meeting the then current or existing wages were
submitted by the Company as their proposal on wages. At the January 31, 1963,
meeting the Respondent's counterproposal was discussed in detail, and the Company
drafted an individual modification on the recognition clause which was then sent to
the Union. On February 14, 1963, the parties had discussions mainly pertaining
to the recognition clauses. At the March 7, 1963, meeting the Company agreed to
submit a revised contract incorporating all of the matters which the parties had
agreed upon.8 At the meeting between the parties on April 2, 1963, the Union pro-
posed that the Company increase the "inside" unit employees 16 cents an hour, and
the "outside" unit employees 12 cents an hour. Union Representative Haygood tes-
tified that the Company had given a 12-cent increase to all "inside" employees with
the exception of those in the bargaining unit. At this time the Company stated that
they had no proposal to make on wages. On April 18, 1963, the Company countered
in this meeting with a proposed raise of 12 cents an hour for "outside" employees and
4 cents an hour for "inside" employees .9 By letter dated April 29, 1963, the Com-
pany was advised that the Union had rejected the Respondent's proposals on wages,
the recognition clause, and overtime. The parties also had meetings on May 8 and
27, 1963. This record shows that by letter dated May 29, 1963, the Company accepted
the Union's recognition clause. By letter dated June 19, 1963, the Union requested
that Respondent's board of directors meet with the Union so that officials of the Corn-
7 Respondent desires to call these raises "reclassifications ," "promotions ," or "merit in-
creases." Whatever the wording might be they were hourly wage increases.
8 On March 15, 1963, this proposal was forwarded to the Union.
0 It appears that at this meeting the Union continued its contention that line fore-
men should be included in the unit, and that the Union intended to appeal the Regional
Director's action excluding line foremen from the unit.
JOE WHEELER ELECTRIC MEMBERSHIP CORP. 1297
pany might be brought up to date on the problems facing the negotiators . On June 26,
1963, the Union was advised that the Respondent 's board of directors would not
inject themselves into the actual negotiations . On June 27 , 1963, the Union was
advised by letter that the Company was granting increases to certain employees of
4 and 12 cents an hour pursuant to the Respondent 's offer in April 1963, as afore-
stated. These increases were made effective with the pay period beginning July 1,
1963.10 Very little else transpired between the parties in 1963.
At the meeting between the parties on Maich 31, 1964 , the Union submitted an
amended wage proposal, and also proposed that time and a half be paid for all hours
worked in excess of 8 hours in any 24-hour period. By letter dated April 15, 1964,
the Company notified the Union that its above wage and overtime proposals were
rejected. At the meeting on July 14, 1964 , the Union made a new proposal on wages
by asking the Company to grant a 21-cent increase to employees in the bargaining
unit . The Company replied that they would take this proposal back to their board of
directors . A good deal of the remaining testimony as to what transpired at the July 14,
1964 , meeting pertained to the Respondent 's proposal to grant increases to five
of its employees as detailed in the prior section of this Decision . By letter dated
July 21, 1964 , the Union was advised that a number of the Respondent 's board of
directors were on vacation , and as a result the Union 's wage proposal of July 14 could
not be considered until the regular meeting of the board of directors on August 12,
1964. On July 28, 1964, the Company was advised by letter that the Union had inves-
tigated the whereabouts of the members of the Respondent 's board of directors, and
found that there had been enough members present to act upon the Union's wage
proposal of July 14. On August 3, 1964, the Union went out on strike. By a letter
dated August 5, 1964, the Union was advised that the Company would meet with the
Union on August 13, 1964. On or about August 4, the Company then printed a news-
paper advertisement stating that the Union had increased their wage demands, and
that the board of directors decided that these demands were unreasonable. On
August 5, 1964, Union Representative Haygood called Mr. Alexander , the chairman
of the Respondent 's board of directors , and asked him if the board had held a meeting
on August 4, 1964. Alexander told Haygood that they had, and then further informed
Haygood: "Well , since you boys have previously been on strike and due to the action
that was taken at that time , I do not think the Board of Directors has any desire to
make any proposal or reach any agreement ." At the meeting on August 13, 1964, the
Union made another wage proposal , and also asked the Company if there was any
answer to their previous wage proposal . The Company replied that there was no
change in the Respondent 's position . The Union then informed the Company that
the Union would accept all the proposals that the Company had previously agreed to,
including wages , if the Respondent would sign an agreement on this day to expire on
January 1, 1965 . In reply to this the Company stated that they wanted to take it
up with the Respondent 's local attorney, Shaver , and also with the Respondent's
board of directors.
The Respondent argues that the parties held 15 bargaining sessions and reached an
impasse caused by their failure to agree upon the wages proposed by the Union; that
the Act does not compel a union and an employer to reach an agreement ; nor does
the Act regulate the substantive terms governing wages, hours, and working condi-
tions incorporated into an agreement . The Company in its brief further states:
Respondent and the Union engaged in hard bargaining ; proposals and counter
proposals were made ; Respondent made numerous concessions but refused to
"give in" further on wages; the Union called two strikes , one of short duration
and one prolonged ; the parties continued to meet but the Union , in a "save face"
tactic after an impasse had been reached and a strike was in progress , decided
not to attempt to reach a contract , but instead to file a charge with the National
Labor Relations Board for the purpose of harrassment [sic]. Such is obviously
not in keeping with the spirit of the Act.
The statutory duty to bargain collectively imposes the obligation to meet and "con-
fer in good faith" with a view to the final negotiation and execution of an agreement
(Section 8(d) of the Act ). While neither party is obligated to yield to the demands of
the other , nevertheless , as the Fourth Circuit has pointed out , "The bargaining
required by the Act does not mean mere talk with the purpose of avoiding agi cement,"
and "... is not satisfied by mere discussion of grievances with employees ' represent-
atives." N.L .R B. V. Darlington Veneer Company , Inc, 236 F. 2d 85, 88-89 (C.A.
4). As the Supreme Court said , in restating the principles which guide decision in
10 Joint Party Exhibit No. 26.
796-027-66-vol. 153-83
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cases involving good-faith bargaining, in N.L R.B. v. Insurance Agents' International
Union (Prudential Ins. Co.), 361 U.S. 477, 485, "Collective bargaining ... presup-
poses a desire to reach ultimate agreement to enter into a collective bargaining
contract."
The first clue to the absence of a bona fide willingness on the part of the Company
to bargain is that throughout the entire course of the negotiations the Respondent was
adamant in its absolute refusal to grant any wage increases to its employees.11 It is
also clear that the Company even entered into the initial meetings with a predetermined
decision to reject all wage proposals by the Union. It is a well-established principle
that a predetermined and fixed resolution to reject is not compatible with the term
negotiate, no matter how long and how often the Company listened to opposing
arguments and repeated its predetermined position. At the third meeting between
the parties on January 9, 1963, the Company submitted the existing wage rates as
their proposal on wages, and, as will be pointed out, their position never changed. It
is noted also that there were no serious reasons advanced by the Company as to why
they entertained their predetermined decision to reject all wage proposals. There
were no contentions that the Company could not economically afford to meet the
wage demands, but only the suggestions that the Union's demands were unreasonable,
that the employees were getting good wages comparable with others in the same work,
and that some were being paid more than members of the board of directors 12
In making my evaluations here I am well aware that the Company proposed a wage
increase of 12 and 4 cents to certain employees at the meeting on April 18, 1963, and
that the Union rejected the same, as aforestated. However, it is abundantly obvious
that in so doing the Company was not conceding or compromising to any proposal
by the Union, but was merely putting into effect the Respondent's policy of reclassify-
ing employees under past practices. In testimony on this aspect of the case the
Respondent's local attorney, Charles Shaver, admitted that these raises were in
accordance with the classifications and past policies of the Company. So in the first
of the two instances where the Company made some raises in wages, it was not because
they were in negotiations with the Union, but merely because they were following
along under their normal and usual practices of periodic merit increases as also
established in the testimony of Davis and Sharrot. Furthermore, I think it can be
said that the continuation of this practice at this particular time was highly beneficial
to the Respondent's position and prejudicial to the Union, but the Company cannot
successfully contend that the raises were counterproposals or concessions to the wage
demands being made by the Union.
In March 1964 the Union made another wage offer and further offered to withdraw
its proposal on time and one half after 8 hours (overtime) if the Company would
agree to this wage proposal The Respondent again demonstrated its predetermined
decision in subsequently rejecting this offer
The Respondent's action on July 14, 1964, in granting five employees certain
raises, was again in the continuation of the company policy to promote or reclassify
employees and admittedly these raises were no concessions made in the course of
the negotiations. It is quite clear that the Respondent had arrived at a final deter-
mination to grant these merit increases before even mentioning the same to the
Union. In contention that this matter had been reduced to an impasse, the Respond-
ent relies on the statement by the Union's international representative, Arnold Madi-
son, that he was opposed to the increases However, on this occasion the Union's
chief negotiator, James Haygood, specifically and admittedly informed the Company
that the Union wanted to discuss the proposed raises with its members, and then an
answer would be forthcoming within a few days. That Haygood acted pursuant to
his statement is clearly reflected by Haygood's letter to the Company on July 15, as
aforestated. Respondent's asserted reliance on the authority of Madison is wholly
misplaced. Madison did not arrange meeting dates, nor did he correspond with the
Respondent, and furthermore he attended only 4 of the 15 bargaining meetings.
His presence at the bargaining meetings was to assist the local in any way possible.
Respondent knew full well that Union Representative Haygood was the chief union
negotiator Likewise, it is obvious that neither Madison nor Haygood understood
that the Respondent's raises would be put into effect immediately, and no such under-
standing was communicated to the Union. Therefore no genuine impasse was
reached as this subject matter was still open for a reply. It also becomes apparent
"This includes the Union's demand for overtime This proposal was then dropped
by the Union during 1964
12 Each of the members of the Respondent's board of directors are engaged in their own
private business, and only serve on the board on a very limited part-time basis. Joint
Party Exhibit No 25.
JOE WHEELER ELECTRIC MEMBERSHIP CORP. 1299
that the Company took this occasion to again remind the employees of the failure
of their bargaining agent, and had their supervisors immediately spread the word to
the five employees. The obvious purpose of the Respondent's conduct can only be
characterized as a serious misrepresentation of the Union's bargaining position,
which had the inevitable results of weakening and subverting the Union.13 The
Respondent's announcement of its wage increase under these circumstances was not
privileged and is further evidence of the Respondent's bad faith. Here the timing
of the announcement was clearly calculated to impress the employees not only that
the Respondent alone was entitled to credit for the increase, but that the Company
intended to offer the Union no more than the Company had already unilaterally
determined to grant.
At the July 14, 1964, meeting the Union also submitted another wage proposal as
aforestated, and the Company advised the Union that it could not consider this pro-
posal before August 12 as some of the members on the Respondent's board of direc-
tors were on vacation. However, on or about August 4, 1964, the Company caused
a notice or advertisement to be published in a newspaper wherein the Company made
clear its absolute rejection of the Union's latest wage proposal. This conduct further
belied the Respondent's prior statement that no meeting could be held until August 12.
Respondent's manager, J. E. Davis, even testified and admitted that the board held
a meeting prior to August 12 wherein they rejected the Union's wage proposal of
July 14, and stated that it was "probably the full Board." Haygood then called the
Respondent's chairman of the board of directors, Alexander, and, as previously noted
and detailed herein, Alexander then informed Haygood that he did not think the
Respondent's board had any desire to reach an agreement. Certainly the above is
a dilatory tactic which has long been recognized as an element of consideration in
ascertaining good or bad faith in the bargaining process, and Alexander's reply on
this occasion also leaves little doubt but that the Company had no inclinations to
reach a contract. Furthermore, there is additional evidence in this record showing
that on all occasions during the various meetings between the parties the Union never
received any immediate reply from the Company on proposals made by the Union.
The answer given was, "We will take it back to the Board of Directors and advise
you." This becomes another dilatory tactic tending to show bad faith.
This record shows that at the final meeting on August 13, 1964, the Union offered
to accept the contract as proposed by the Company, including wages,14 if the agree-
ment was immediately signed and one which would expire on January 1, 1965.
Prowell replied that he would not agree until it could be discussed with Shaver and
the Respondent's board of directors. Prowell testified that he had previously
informed the Union that the initial contract term was to be 12 months. At the con-
clusion of this meeting the Union also suggested that the parties meet the next day,
and from "day to day" thereafter until an agreement was reached. Certainly the
Respondent's failure on August 13 to act on the Union's offer to accept everything
the Company had previously agreed to is overwhelming evidence of the Respondent's
failure to bargain as required by the Act, and exemplified once again its determina-
tion to undermine and subvert the status of the employees' bargaining agent. It also
is specifically noted, in this regard, that the Respondent's local attorney, Shaver, had
participated in most all of the negotiating meetings and was well aware of the
Respondent's position, and likewise the board of directors had been kept fully aware,
as all matters relating to union proposals had to be cleared by them. Under such
circumstances it is most difficult for me to visualize what proposals had to be dis-
cussed or cleared with Shaver and the board of directors. At this stage in the pro-
ceedings the Union was not proposing anything, but, to the contrary, was dropping
all of its demands and agreeing to everything the Company had agreed to-yet the
Respondent still had to clear it and also refused to have any additional meetings
with the Union.
In the final analysis here it should also be mentioned that the Respondent's nego-
tiators had somewhat limited authority. In fact, the Respondent's manager, Davis,
testified that they had no authority to execute an agreement with the Union. Shaver
testified that the company negotiators could not give anything on wages after the
13 The Respondent' s sudden announcement of substantial increases to five employees was
approximately one-fourth of the total number in the unit ranging from 19 to 45 cents
per hour and coming after about 18 months of unsuccessful efforts on behalf of the Union
to negotiate increases for all represented employees.
"Wages included the 4- and 12-cent increases on certain employees which the Com-
pany had previously proposed and put into effect, and the Union dropped its entire wage
demands.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
board of directors had informed them that they would not increase wages. Tht
Respondent's chief negotiator, Prowell, testified that he had no authority to go beyond
the wage proposals made by the Company without going back to the board of direc-
tors. While the absence of competent authority of a bargaining representative to
enter into a binding agreement is not necessarily indicative of bad faith, the character
of the agent's powers is a factor to be given consideration. I find that the limitations
imposed by the Company in this case, including its predetermined position concern-
ing overtime and wages, particularly when considered in the entire context of events
along with the rejection of the Union's offer on August 13, reveal that the Respondent
did not bargain in good faith.1
In concluding it should be further noted and pointed out that there is no argument
by the General Counsel that the parties did not reach agreements on some of the
individual proposals. That they did so is readily admitted. However, the manner
and process in arriving at these individual agreements on specific proposals shows,
in the first instance, that the Respondent's counterproposals constituted many depar-
tures from those sought initially by the Union.16 And it is abundantly clear from
a study and comparison of these exhibits, and the testimony concerning the same,
that the Union, in effect, put aside in most respects its own proposals, and that the
Union also receded from many of its original provisions and made progressively
lesser requests while continually accepting most of the Respondent's proposals. In
other words it appears to me that the individual agreements reached were generally
made by reasons of the Union's acceptance of the Respondent's proposal as it stood,
and, although there may have been some concessions by the Company on standby
time and holiday proposals during the negotiations, it is clear that there was no real
intent on the Respondent's part to reach any final and overall contract.
From all the facts in this record I find that the Company did not approach the
bargaining table with an open mind and sincere desire to reach an agreement, but
rather had a predetermined intention not to do so. Accordingly, the Respondent
failed to bargain in good faith and thereby violated Section 8(a)(5) and (1) of
the Act.
The Strike
The complaint alleges that the strike on August 3, 1964, was caused and prolonged
by the unfair labor practices of the Company. I find that the strike was the result
of the Respondent's failure to bargain in good faith and was an unfair labor practice
strike at all times. There is clear evidence which reveals that the cessation of work
was the result of the Respondent's conduct. Thus, the Union's letter to Prowell on
July 28 informed the Company that the Union would deem it necessary to take what-
ever "action" they felt appropriate due to the Respondent's failure to bargain in good
faith, and the Union's meeting with employees at which the strike vote was taken
refers to the Respondent's adamant position throughout the negotiations. Further,
the Union's picket signs stated that employees were striking because of no agree-
ment, working conditions, hours of work, and wages.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The operations of Respondent, described in section III, above, occurring in con-
nection with the unfair labor practices described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent has unlawfully refused to bargain with the Union
as the representative of employees in an appropriate unit, it will be recommended
that Respondent be required upon request to bargain with the Union and embody
any understanding reached in a signed agreement.
15 Herman Sausage Co., Inc., 122 NLRB 168, 170; Fitzgerald Mills Corporation, 133
NLRB 877.
1e Joint Party Exhibit No. 59 (Union's proposal) and Joint Party Exhibits Nos. 60 and
61 (Respondent's counterproposals).
JOE WHEELER ELECTRIC MEMBERSHIP CORP. 1301
It having been found that the strike was an unfair labor practice strike, I shall
recommend that the Company offer, upon application, immediate and full reinstate-
ment to their former or substantially equivalent positions to all those employees who
went on strike on August 3, 1964, or thereafter, without prejudice to their seniority
or other rights and privileges, dismissing, if necessary, all persons hired on or after
that date and make such applicants whole for any loss of pay suffered by reason of
Respondent's refusal, if any, to reinstate them by payment to each of them a sum
of money equal to that which they normally would have earned less their net earn-
ings during the period from 5 days after the date on which they applied for rein-
statement to the date of Respondent's offer of reinstatement.
It is also recommended that the Board order the Company to make available to
it, upon request, payroll and other records to facilitate the determination of reinstate-
ment rights and the amount of backpay due.
Respondent's unfair labor practices, as found, strike at the heart of rights guaran-
teed employees by the Act. Unless appropriately restrained, there is reasonable
ground to anticipate that Respondent, in the future, will infringe upon other rights
guaranteed to employees. I shall, therefore, recommend an order requiring Respond-
ent to cease and desist from infringing in any manner upon the rights guaranteed
employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. The Board has jurisdiction of the subject matter of
this proceeding.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3 All employees at, and working out of, the Employer's establishments at Hart-
selle and Moulton, Alabama, including the chief warehouseman, meter readers, and
engineers, but excluding office clerical employees, professional employees, guards,
the area supervisor, the superintendent, line foremen, and all other supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. The aforesaid labor organization is, and at all times material herein has been,
the exclusive representative of the employees in the above appropriate unit for
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to bargain collectively in good faith with the aforesaid labor organi-
zation as the exclusive representative of its employees in an appropriate unit,
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a) (1) and (5) of the Act.
6. The strike beginning on August 3, 1964, was at all times an unfair labor practice
strike.
7. The Respondent violated Section 8(a) (1) of the Act by promising employees
wage increases if they abandoned or dropped their activities on behalf of the Union.
8 By the aforesaid conduct, the Respondent has also interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case and the foregoing findings and conclusions of
law, and pursuant to Section 10(c) of the National Labor Relations Act, as amended,
I hereby recommend that Respondent Joe Wheeler Electric Membership Corpora-
tion, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith concerning rates of pay, wages, hours of
employment, or other conditions of employment with International Brotherhood of
Electrical Workers, Local Union No. 558, as the exclusive representative of the
employees in the appropriate unit herein described.
(b) Discouraging membership in the above-named Union, or in any other labor
organization, by discharging, refusing to reinstate, or otherwise discriminating
against employees in regard to their hire or tenure of employment or any term or
condition of employment.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Promising employees wage increases if they refrain from activities on behalf
of the Union.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist the above-
named Union, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request bargain collectively in good faith with the aforesaid Union as
the exclusive representative of all the employees in the above-described unit and, if
an understanding is reached, embody such understanding in a signed agreement.
(b) Offer, upon application, immediate and full reinstatement to all those employ-
ees who went on strike, in accordance with the provisions set forth in the above
section entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board, or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due under the terms of this Recommended Order.
(d) Post at its Alabama plants copies of the attached notice marked "Appendix." 17
Copies of said notice, to be furnished by the Regional Director for Region 10, shall,
after being duly signed by a representative of the Respondent, be posted by it imme-
diately upon receipt thereof, and be maintained by it for a period of 60 consecutive
days thereafter, in conspicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken to insure that such
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 10, in writing, within 20 days from
the date of receipt of this Decision, what steps the Respondent has taken to comply
herewith.18
17In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL bargain, upon request, with International Brotherhood of Electrical
Workers, Local Union No. 558, as the exclusive representative of all employees
in the bargaining unit described herein in respect to rates of pay, wages, hours
of employment, or other conditions of employment, and, if an understanding is
reached, embody it in a signed agreement.
WE WILL NOT promise our employees wage increases if they refrain from
supporting the above-named Union.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist the Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, or to engage in con-
certed activities for the purpose of collective bargaining, or other mutual aid or
protection, or to refrain from any or all such activities.
WE WILL offer, upon application, immediate and full reinstatement to all those
employees who went on strike with backpay in accordance with the provisions
herein.
IPAVA FARMERS ELEVATOR CO. 1303
All our employees are free to become or remain, or to refrain from becoming or
remaining, members in good standing of International Brotherhood of Electrical
Workers, Local Union No. 558, or any other labor organization.
JOE WHEELER ELECTRIC MEMBERSHIP CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No.
876-3311, Extension 5357, if they have any questions concerning this notice or com-
pliance with its provisions.
Ipava Farmers Elevator Co. and Local 15, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America. Case No. 38-CA-24 (formerly 13-CA-6691). July 6,
1965
DECISION AND ORDER
On April 12, 1965, Trial Examiner Arthur Christopher, Jr., issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief. The General Counsel filed a
brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
'The Respondent has excepted to the Trial Examiner 's credibility resolutions, but we
are not persuaded that a clear preponderance of all the relevant evidence is contrary to
the Trial Examiner ' s credibility findings . Standard Dry Wall Products , Inc., 91 NLRB
544, enfd. 188 F. 2d 362 (C-A. 3).
153 NLRB No. 103.